NY Penal Law § 265.09: Criminal use of a firearm in the first degree

There are two criminal use of a firearm charges in the New York Penal Code. Both require that the defendant possess a weapon while in the process of committing a violent felony. For criminal use of a firearm in the second degree the predicate offense is a class C violent felony offense, while for criminal use of a firearm in the first degree the predicate offense is a class B violent felony offense. In addition to showing that you committed a class B violent felony offense, to be convicted of criminal use of a firearm in the first degree under New York Penal Code § 265.09, the prosecutor must also show the following:

1. that you possessed a loaded deadly weapon, or
2. that you displayed what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

Example

The police apprehend a man who had broken into a home and injured a woman who was in the house. Upon searching the man the police found that he had a loaded gun in his pocket. This man could be prosecuted for burglary in the first degree, a class B felony. Because of this the prosecutor could also charge him with criminal use of a firearm in the first degree.

Related Offense

1. Criminal possession of a dangerous weapon in the first degree: New York Penal Code § 265.04

Defenses

In order to convict you of criminal use of a firearm in the first degree, the prosecutor must first prove that you committed the underlying class B felony. If you are able to disprove any of the elements of the underlying felony, then the prosecutor will have trouble convicting you of that felony and as a result will not be able to prove that you committed criminal use of a firearm in the first degree.

Sentence

Because criminal use of a firearm in the second degree is a class B felony, if you are convicted your possible sentence will be up to 25 years in prison. The minimum prison sentence will be 10 years since you will have already been convicted of a prior violent felony offense. Following release from prison you may be required to serve a term of post-release supervision.

New York Penal Code § 265.09: Criminal use of a firearm in the first degree

1. A person is guilty of criminal use of a firearm in the first degree when he commits any class B violent felony offense as defined in paragraph (a) of subdivision one of section 70.02 and he either:
   1. possesses a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious injury may be discharged; or (b) displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

Contact the Law Offices of Stephen Bilkis & Associates

Being arrested for criminal use of a firearm in the first degree is serious. If you are convicted many aspects of your life may change forever. However, there may be defenses to this charge that only an experienced practitioner will understand. Thus, if you have been arrested for criminal use of a firearm in the first degree or any other weapons charge, it is important to immediately contact someone who understands the New York criminal system. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with gun crimes, grand larceny, white collar crimes, and other serious crimes. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of larceny in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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